Also speaking

It's a great pleasure to call this meeting of the Standing Committee on Justice and Human Rights to order, as this committee proceeds to its study of Bill C-16, an act to amend the Canadian Human Rights Act and the Criminal Code.

It is a pleasure to welcome Mr. Garrison to replace Mr. Rankin at today's meeting. Welcome, Mr. Garrison.

I am certainly pleased to be here with my deputy minister and pleased for the opportunity to be able to present on Bill C-16 today. I look forward to answering any questions.

In my remarks today, I will outline the broad objectives of the bill, take you through some specific amendments, and then respond to three points that were raised during second reading debate.

Bill C-16, an act to amend the Canadian Human Rights Act and the Criminal Code, is an important step forward in protecting the equality, dignity, security, and freedom of transgender and gender-diverse Canadians.

Trans Canadians, like all Canadians, should have an equal opportunity to make for themselves the lives that they are able and wish to have. Indeed, all Canadians should be free to be themselves, without fear of discrimination, hate propaganda, and hate crime. Sadly, this is not yet the experience of many trans people.

As you are aware, trans and gender-diverse people face an elevated risk of violence, including physical and sexual assault, and verbal, physical, and sexual harassment. They also face significant obstacles in obtaining and advancing in employment, and not because of their lack of qualifications but because of discrimination.

Yet our human rights protections and criminal law do not explicitly protect this vulnerable group. With Bill C-16, Parliament has the opportunity to affirm in clear language that trans and gender-diverse people are entitled to equal protection from discrimination, hate propaganda, and hate crime.

Canada is strengthened by its diversity. Diversity flourishes when our laws and institutions promote social inclusion and participation for all, which is fundamentally what this bill seeks to do. To this end, Bill C-16 proposes to make three amendments.

It would amend the Canadian Human Rights Act to add two prohibited grounds of discrimination: gender identity and gender expression. As a result of this amendment, it would be a discriminatory practice, in matters of employment and the provision of goods, services, facilities, and accommodation in the federal jurisdiction, to disadvantage people because of their gender identity or gender expression.

This bill also proposes to amend the Criminal Code. It would expand the list of identifiable groups that are protected from hate propaganda by adding gender identity or expression to the list.

Finally, it would make it clear that hatred on the basis of gender identity or expression should be considered an aggravating factor in sentencing for criminal offences.

It is not the first time that parliamentarians are studying this issue. Indeed, this House has already passed substantially the same bill twice before. Moreover, most provinces have already made similar amendments. I believe these amendments are overdue. Nevertheless, it is evident from the debate in the House that there are questions about why we need to enact these amendments and what they will do. I listened carefully to the debate and I acknowledged the perspectives of my fellow parliamentarians. I would like to address some of the questions today.

Some wondered whether the amendments are necessary. It was pointed out that trans people may already complain of discrimination on the ground of sex under the Canadian Human Rights Act, and that the hate crime sentencing provision is open-ended and would therefore already include gender identity and expression. Allow me to offer three responses.

First, Canadians should be able to turn to our fundamental laws, like the Canadian Human Rights Act and the Criminal Code, and see their rights and obligations spelled out clearly. Promoting access to justice means working on an ongoing basis to make our laws as clear and easy as possible for everyone to understand.

Trans people who feel they have been discriminated against should not have to become experts in legal interpretation to advocate for their basic rights. Employers and service providers should know explicitly what legal duties they have towards their employees and customers. Adding these grounds to the Canadian Human Rights Act as well as the Criminal Code would ensure they are clear for all to see.

Second, Canadians expect parliamentarians to speak on their behalf to the social issues of the day and to affirm their fundamental rights. With this bill, Parliament has the opportunity to affirm that all Canadians should be free and feel safe to be themselves. The House can stand with trans and gender-diverse people to affirm their equal rights.

It is more than a symbolic gesture; this is about embedding new language of respect and inclusion in two important laws that set basic norms about how we conduct ourselves on a daily basis. This is about the Government of Canada sending a clear message that all Canadians are protected by and have the benefit of the law.

The third reason will be of special interest to this committee in its role of studying and recommending improvements to Canada's justice system. This legislation would fill an important gap in the criminal law. The Criminal Code's hate propaganda offences currently extend to the ground of sex, but there is no mention of gender identity or expression. As you know, gender identity is not the same characteristic as sex. Since criminal prohibitions are interpreted narrowly, in order to ensure that the offence protects against hate propaganda which targets trans and gender-diverse individuals because of their gender identity and expression, it is important for Parliament to legislate explicitly on this point.

We also heard questions about why gender identity and expression are not defined and whether their meaning is too subjective. Again, let me offer some comments.

Gender identity and expression are now found in most provincial human rights codes. Commissions, tribunals, and courts are expected to elaborate the meaning of such grounds in a reasonable way, with reference to the purpose of the law. They clarify these grounds, and indeed all grounds, through application of real-life examples, allowing the law to respond to individual situations in line with its purpose.

This does not mean that grounds are completely open-ended or that people can claim protection on a whim. There are real limits to what any ground can mean. The Federal Court of Appeal has insisted that the grounds of discrimination in the Canadian Human Rights Act must be interpreted in ways that do not trivialize the Canadian Human Rights Act's important role in the legal system. By way of comparison, the ground of religion is also undefined in the act, yet one's religious beliefs are subjectively determined. As the Supreme Court of Canada has stated, legal protection depends on the religious beliefs being sincere, a requirement that tribunals and courts are used to assessing on an individual basis.

Finally, we've heard that there are diverse understandings of sex and gender in Canada. Some may ask whether these amendments would lead to criminal prosecution of people who express disapproval of diverse gender identities or expressions. The answer is no. As explained in the statement of potential charter impacts that I tabled at second reading, the amendments to the hate propaganda provisions respect freedom of thought, belief, opinion, and expression in a free and democratic society. The criminal prohibitions on hate propaganda impose a narrow limit on expression. This limit is demonstrably justified in a free and democratic society, given the important objective being pursued, namely, to target extreme and dangerous speech that one, advocates genocide; two, wilfully promotes hatred; or three, incites hatred in a public place likely to cause a breach of the peace against vulnerable groups. The target is speech that promotes unusually strong and deeply felt emotions of detestation or vilification, which is far from the expression of religious faith, dissenting views, or even opinion that some may find offensive.

The Canadian Human Rights Act is concerned with protecting for all persons, equal access to goods, services, and employment in the federally regulated sector. It is not concerned with regulating the expression of one's beliefs. Rather, the act prohibits discriminatory practices, including harassment when harassment is inflicted in the employment context or in the provision of goods, services, facilities, or accommodation available to the general public, commercial premises, or residential accommodation.

As interpreted by the courts and tribunals, harassment involves serious incidents of persistent treatment that accumulates to create a hostile environment in these contexts.

Many other topics have been raised in debate in the House; however, several of them concerned matters of provincial jurisdiction, and others referred to situations that are outside the scope of the bill, keeping in mind that the Canadian Human Rights Act applies only in the federal sector. This means that it applies to the federal government in its role as employer and service provider and to the federally regulated private sector, including crown corporations, interprovincial and international transportation companies, telecommunications, the postal service, and chartered banks.

To conclude, I encourage this committee to focus on the real subject matter of this bill. It is about equal opportunity for trans and gender-diverse persons in employment and in access to goods and services. It is about increasing their sense of security and freedom from the most extreme forms of hate speech, including calls for genocide and its promotion. It's about denouncing what we know are still all-too-frequent acts of violence and other crimes when they target persons out of bias, prejudice, or hatred based on an individual's gender identity or expression.

Surely we can all agree that these objectives are pressing and in urgent need of being addressed. Bill C-16 would make the amendments needed to pursue these crucial objectives.

Mr. Pentney, thank you for coming as well and for the good work you do on our behalf. Mr. Pentney, I'd like to start with you.

In a Department of Justice backgrounder issued on May 17, 2016, the department, which I assume you are responsible for, stated that the Criminal Code also provides that a judge, when sentencing someone for having committed an offence, must consider any relevant aggravating circumstances, including whether the offence was motivated by bias, prejudice, or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disabilities, sexual orientation, or any other similar factor. It went on to say that this phrase is broad enough to include gender identity or expression.

That is a backgrounder from your department, sir.

I'm wondering how changing the Criminal Code as this bill is suggesting to do would impact criminal proceedings. What are, really, the palpable differences? Also, are there things that are covered in Bill C-16 that presently don't exist in either the Canadian Human Rights Act or the Criminal Code?

—but in Bill C-16 we are providing clarity with respect to the Canadian Human Rights Act and clarity with respect to the Criminal Code, as well as adding it as an aggravating factor in sentencing, to make the law clear, to ensure that we provide for protection against discrimination for individuals based on their gender identity and gender expression. This provides the necessary clarity and the ability for individuals to feel safe to be themselves.

I would add that there is a clear gap, in terms of some provisions certainly in the Criminal Code, in the sense that, as the minister has stated, the code will be interpreted narrowly, and so in order to determine whether or not “other similar factors” would include gender identity or gender expression, there would be an argument required that would not be required if the words were plainly stated in the provision.

Second, in terms of the promotion of genocide, there is a clear gap. There would be no reasonable way for a court, we think, applying the doctrine that applies in terms of how to interpret the criminal law narrowly so as to protect to the maximum extent possible the liberties of the individual, to apply the kind of interpretive approach that has been applied historically and previously by human rights commissions abroad in liberal interpretations.

In terms of the sentencing provision, then, there would be an extra argument required that would be eliminated by the clarification that the bill proposes.

In respect to the promotion of genocide, we believe there is a clear gap that would be filled by adding the expression.

In respect to the Canadian Human Rights Act, as the minister has said, the Human Rights Act is recognized as quasi-constitutional. Short of the charter, it stands above other laws with some other fundamental laws that the Supreme Court has also recognized as quasi-constitutional.

The purpose of the bill is to make clear to all Canadians what Parliament and Canada stand for in respect of standing against discrimination.

I don't argue with what you're saying, although that's not consistent with what your backgrounder said in May of this year. Your backgrounder suggested there were no gaps and currently everything would be covered under existing legislation.

On November 27, 2012, at the Standing Committee on Justice and Human Rights, Mr. Ian Fine, acting secretary general, Secretary General's Office, Canadian Human Rights Commission, stated, “the commission, the tribunal, and the courts view gender identity and gender expression as protected by the Canadian Human Rights Act.” He went on further to say, “if someone experiences discrimination based on gender identity or gender expression, they are currently protected under the Canadian Human Rights Act.”

On June 3, 2013, before the Senate Standing Committee on Human Rights, David Langtry, the acting chief commissioner of the Canadian Human Rights Commission, stated, “the tribunal and the courts view gender identity and gender expression as protected by the Canadian Human Rights Commission”. He also went on to state, “When someone experiences discrimination based on gender identity or gender expression, they are protected under the Canadian Human Rights Act. The commission already accepts complaints that raise transgender issues.”

Minister, in May of this year, you were participating in CTV's Power Play with Don Martin. In response to a question regarding legal recourse, you stated, “There is recourse under the Canadian Human Rights Act in terms of sexual orientation.”

By your own admission, this bill doesn't change anything. Why have you chosen to put forward a bill that really doesn't add a lot of value and for which the meaningfulness is minimal?

I appreciate the question and I, even more, appreciate the opportunity to provide an answer.

I believe and am confident that Bill C-16 does something substantial in terms of amending the Canadian Human Rights Act to explicitly and in clear language add gender identity and gender expression as a prohibited ground. I want to acknowledge the decades of advocacy on behalf of the trans community to ensure that we have been able to get to this place wherein, as a Parliament, we have the opportunity to recognize that discrimination against trans individuals, individuals who have a different gender identity or gender expression, are now clearly protected under the Canadian Human Rights Act.

Furthermore, to add them as an identifier to the identifiable groups under the Criminal Code and have gender identity and gender expression added as an aggravating factor in sentencing goes to the intent, which I am very proud of in terms of Canadian values and recognizing that as a country we are stronger in terms of our diversity and we need to ensure that we do as much as possible to eliminate and eradicate discrimination wherever it finds itself in our society.

Minister, I want to thank you for appearing here today, but I also want to thank Mr. Garrison for his work in previous Parliaments in bringing this type of legislation forward. Thank you very much.

Minister, over the past 20 to 30 years, there have been significant developments in law and rights for the LGBT community. This is another piece of that puzzle for a more inclusive society. Can you please inform the committee as to why this was one of the first pieces of legislation that you decided to bring forward as Minister of Justice?

As the Minister of Justice and Attorney General of Canada, but specifically as minister, I feel and take great pride and responsibility to ensure that we live in a legal and political system that will protect us regardless of our race, regardless of our sexual orientation, regardless of our faith.

For me, in terms of my responsibility and looking at the substantive amount of work that had come before me in terms of presenting bills back to members of Parliament Siksay and Garrison, as well as member of Parliament Fry, and the trans population across the country, who have elevated this to the point where they have articulated where they felt discrimination, to do our part as legislators and my part as minister, this was pretty much a no-brainer and something that I'm very pleased to have been able to follow up from the many who have advocated this in the past and put forward Bill C-16. I very much hope that this bill goes through our parliamentary process and becomes law, so we can amend those statutes to provide for and eliminate discrimination as much as we can.

Minister, discrimination against trans people in society is significant. You touched on it. Trans people face higher levels of depression, suicide, inability to find work. Can you describe how this legislation will help trans people and punish those who discriminate against them?

I believe this legislation is a clear statement on behalf of the Government of Canada, and further, on behalf of parliamentarians, that would say that discrimination in any way, shape, or form is unacceptable in 2016, and that we clearly recognize the challenges that individuals in the trans community face. When they face discrimination, there is recourse through the Canadian Human Rights Act, explicitly stated in terms of being able to hear their cases of discrimination, and when individuals who express their gender identity or their gender expression beyond norms, they have the ability in terms of criminal proceedings around hate speech or hate propaganda to have avenues for redress in that regard as well.